Brain Porn? That is so 2008. Neuro-skepticism is where it’s at!

It’s been a while since we’ve done an update on neurolaw in the courtroom. The idea that pretty and colorful pictures of the brain (aka fMRIs) can give us a window into motivations, intent, and the creepiness of others captures our imagination. New research though, cautions us that perhaps (like the vast over-estimations of the CSI Effect) we’ve been a bit too imaginative about the impact of what is often called “brain porn” on our jurors.

Why is it called ‘brain porn’? Because the pretty and colorful pictures shown are believed to be powerfully seductive to jurors–it’s science, after all! NPR recently wrote about a series of studies (new and forthcoming) that say perhaps the tide has changed and people are now more suspicious (as opposed to the initial thrill) by what we can really learn from those neuroscientist’s pretty pictures. It’s called “neuro-skepticism”.

Back in 2008, two (now) famous studies told us that when you show people photos of fMRI scans, that information is more powerful than a bar chart showing actual data counts (McCabe and Castel, 2008). The second (Weisberg, Keil, Goodstein, Rawson & Gray, 2008) essentially said that poor explanations of varying psychological phenomena were seen as more convincing when accompanied by neuroscience information that was irrelevant to the explanation. (And this is a reason you have to keep reading the current research rather than relying on old research that had a finding you think important. Times change! And so do reactions of people to things like the pretty pictures generated by the fMRI.)

“In one set of studies, authored by Hook and Farah and published in the September issue of the Journal of Cognitive Neuroscience, people judged research summaries that included fMRI images no more surprising, innovative, worthy of funding, or illustrative of good scientific reasoning than summaries accompanied by other images, such as photographs associated with the summarized research. (Hook and Farah’s initial experiment did find that fMRI images increased people’s ratings that the research summary was interesting, but this small effect wasn’t replicated in their subsequent experiments.)

Another set of studies, authored by Schweitzer, Baker, and Risko and forthcoming in the December issue of the journal Cognition, found that neuroimages only boosted assessments of scientific reasoning under very particular conditions. When participants read two fake research summaries that both involved flawed reasoning, the second was perceived to be better if it was the only one of the two stories to contain a 3-dimensional fMRI image, suggesting that something about the comparison between (poor) studies that did and did not involve brain images led to an advantage for the former.”

In other words, the seductive allure of the colorful brain images appears to have waned. The effect is now likely neither particularly powerful or persuasive. That’s another way of saying that the neurolaw craze may have gone the way of the CSI Effect and is now much ado about nothing. No longer novel. No longer an expectation. What they do say that is particularly important for litigation advocacy is this:

“Anything that smacks of hard, objective science might be enough to fool people’s judgments when more effective ways to assess scientific quality aren’t readily available, either because information is limited or the individual lacks relevant expertise.”

Note that quote is not really about either neuro-images or neuroscience. Instead it is about something familiar to us all. When opposing counsel puts up information that sounds important, intelligent, and scientific, you need to educate jurors on how to understand it differently and how other experts might beg to differ with their conclusions. Too often jurors are stuck with either believing one presentation that they don’t really understand, or another view that is equally incomprehensible. So they end up judging the messenger instead of the message, which includes demonstrative images and data transformations (like neuro-images). And we choose to blame the ‘stupid gullible jurors’ who are left with the responsibility of trying to find the truth in the dark.

We’ve seen highly technical information presented effectively a number of different ways, but perhaps most often, it’s done through the direct examination of a well-prepared expert who is relatable; a person jurors experience as being respectful and not condescending while also teaching them what they need to know to do their civic duty.

Recently, we saw it very effectively done by showing jurors an educational (and brief) video found on YouTube (seriously) that quickly and succinctly explained a very complicated process in a way everyone in the room understood (and they were thrilled to be able to ‘get’ why this was such an important issue). Those mock jurors were grateful to Defense counsel for teaching them something they saw as critically important for their decision-making in the case. (And their gratitude was evident in their increased receptivity to his case throughout the remainder of that trial.)

You can do it with days and days of eye-glazing testimony from various experts. Or you can do it relatively efficiently with a really good expert witness who understands the goal of his or her testimony is to teach the jurors important information clearly and concisely. And you can maybe even do it with a YouTube video to guide the expert direct examination. We know (through very painful and mind-numbing experience) which version jurors prefer.

For the fourth year in a row we have been honored with recognition from the ABA via inclusion in their 2013 list of the Top 100 legal blogs in the country. We work hard to blog consistently even when inundated with work and would appreciate your vote for us at the Blawg 100 site under the LITIGATION category. You will have to register your email just so you can’t vote 47 times. There are many worthwhile law blogs on this list so take some time to peruse. Thanks! Doug and Rita